Maltonner v. Dimmick

By the Court, Willard, J.

If the defendant seeks to defend himself under Philip Kearney’s title, derived under the statute foreclosure of 1828, it may be answered that the correctness of that foreclosure has not been shown; and if correct, that Philip Kearney’s title is barred by the statute proceeding between George Maltonner and him in 1840. As Mitchell entered subsequently to that time, he cannot shelter himself under that title. The lapse of time from 1810, when the plaintiff first entered under a contract to purchase from Philip Kearney, is sufficient to warrant a jury to presume a grant either from Philip Kearney or those succeeding to his rights. (Cowen & Hill’s Notes, 369, § 11.) The deed from Susan Kearney, widow, by Philip, as her attorney, dated May 24th, 1820, may be presumed to be in execution of the original contract of sale from Philip Kearney to the plaintiff, made in 1810 or 1811. As the consideration was paid by giving a bond and mortgage, and as the amount of the bond has been collected by a suit brought upon it, and it was satisfied more than ten years before this suit was commenced, the ratification by Susan Kearney of the deed given in 1820, by Philip as her attorney, may be presumed. Twenty years is long enough to raise that presumption. (Id. 12 John. Rep. 357, 362; and per Walworth, chancellor, 11 Wend. 455.) It is therefore immaterial to inquire whether the power of attorney from Susan Kearney, of the 20th of October,--1818, extended to lands acquired by her subsequent to the date of the power.

Again, Mitchell was put in possession by Dimmick, after the death of George Maltonner, in 1841. Dimmick acted as Philip Kearney’s agent, and in that character first put one Parmenter in possession under a lease for one year. And he afterwards induced Parmenter to leave because he talked too much, and put in the defendant Mitchell. Now as the plaintiff succeeds to the rights of George Maltonner as his heir, and as Mitchell went in under Philip Kearney in 1841, the plaintiff can rely on the judgment of the supreme court obtained in 1840, by George Maltonner, against Philip Kearney. That judgment, by the statute, (2 R. S. 317, §§ 7, 8,) is conclusive against Philip Kearney and all persons claiming under him, by title accruing subsequently to the service of the notice, which it appears by the record was in May, 1839. The plaintiff being the heir of George Maltonner, can avail himself of that judgment as a privy in blood. (1 Phil. Ev. 324.)

The defendant’s counsel insists that Mitchell was in under Archibald K. Kearney, one of the heirs of Susan Kearney, and is thus not affected by the judgment. But it appears that Archibald K. Kearney claimed as assignee of Philip. In that character merely he was barred. And, moreover, the testimony of Dimmick shows that Mitchell went in under Philip.

It is said that Susan Kearney, tvidow, died seised, in 1828, leaving Archibald K. and Philip her heirs. Philip, then, had as much title by descent as Archibald ; and his title, whatever it was, is barred by the judgment.

The entry of Mitchell, on the death of George, and before the taking possession by the plaintiff as heir of his brother, was an abatement. (3 P. Wms. 167.) He shows no authority that can justify the act. A prior possession of the plaintiff was sufficient to enable him to recover against such a possession. Such prior possession was shown. The plaintiff could connect his possession in 1810 with that of his brother, who succeeded him. The possession of both is, but one continued act; and the benefits resulting from it haye devolved on the plaintiff by descent.

It is unnecessary to discuss the question of adverse possession.

I think the cause was correctly decided at the circuit, and that the motion for a new trial should be denied.

Motion denied.